BILL ANALYSIS                                                                                                                                                                                                    



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          CONCURRENCE IN SENATE AMENDMENTS
          AB 957 (Galgiani)
          As Amended  August 17, 2009
          2/3 vote. Urgency
           
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          |ASSEMBLY:  |77-0 |(May 26, 2009)  |SENATE: |30-4 |(September 1,  |
          |           |     |                |        |     |2009)          |
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          Original Committee Reference:    B. & F.  

           SUMMARY  :  Enacts the Buyer's Choice Act, to prohibit a seller of  
          residential real property improved by four of fewer dwelling  
          units from directly or indirectly requiring a specific title  
          insurer or escrow agent as a condition to selling the property.   
           Specifically,  this bill  :  

          1)Specifies that a buyer is not prohibited from agreeing to  
            accept the services of a title insurer or escrow agent  
            recommended by the seller, provided that written notice of the  
            right to make an independent selection is first provided by  
            the seller to the buyer.

          2)Provides a violation by a seller, as defined, shall be liable  
            to the buyer in an amount equal to three times all charges  
            made for the title insurance or escrow service.  In addition,  
            any person in violation shall be deemed to have violated his  
            or her license law and shall be subject to discipline by his  
            or her licensing entity.  

          3)Specifies a transaction shall not be invalidated solely  
            because of the failure of any person to comply with any  
            provision of this act.  

          4)Defines "escrow service" as a service provided by a person  
            licensed pursuant to Division 6 of the Financial Code, or  
            exempt from licensing pursuant to Financial Code Section  
            17006.  

          5)Defines "seller" for purposes of this bill to mean a mortgagee  
            or beneficiary under deed of trust who acquired title to  
            residential real property improved by four or fewer dwelling  
            units at a foreclosure sale, including a trustee, agency,  
            officer, or other employee of any such mortgagee or  








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            beneficiary.

          6)Defines "title insurance" as insurance offered by an insurer  
            admitted in this state to transact title insurance pursuant to  
            Chapter 1 of Part 6 of the Insurance Code.  

          7)Enacts a sunset date of January 1, 2015.  

          8)Contains an urgency clause, allowing this bill to take effect  
            immediately upon enactment.   

          9)Makes findings and declarations regarding the real estate  
            market.  

           The Senate amendments  :

          1)Provide that a buyer can agree to accept the services of a  
            title or escrow provider recommended by the seller, provided  
            that written notice of the right to make an independent  
            selection is first provided by the seller to the buyer. 

          2)Add an urgency clause.  
          3)Add findings and declarations regarding the real estate  
            market.  

          4)Add the definitions of "escrow service" and "title insurance."

          5)Apply only to residential real property improved by four or  
            fewer dwelling units.  

           EXISTING FEDERAL LAW  :

          1)Authorizes federally-chartered financial institutions to  
            engage  in the business of mortgage lending, brokering, and  
            servicing  and governs the rules under which such activities  
            may be  conducted under a wide variety of laws, including, but  
            not limited to, the Home Ownership and Equity Protection Act   
            (HOEPA), Real Estate Settlement Procedures Act (RESPA), Truth  
            in Lending Act (TILA), Home  Mortgage Disclosure Act (HMDA),  
            and regulations that interpret those acts (most notably  
            Regulation C, which interprets the Home Mortgage Disclosure  
            Act and Regulation Z, which interprets the Truth in Lending  
            Act).

          2)Enacts Section 9 of RESPA to prohibit a seller from requiring  








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            the home buyer to use a particular title insurance company,  
            either directly or indirectly, as a condition of sale.  Buyers  
            may sue a seller who violates this provision for an amount  
            equal to three times all charges made for the title insurance.

          3)Authorizes under Section 9 of RESPA that individuals have one  
            year to bring a private law suit to enforce violations.   
            Lawsuits may be brought in any federal district court in the  
            district in which the property is located or where the  
            violation is alleged to have occurred.  U.S. Housing and Urban  
            Development, a State Attorney General or State Insurance  
            Commissioner may bring an injunctive action to enforce  
            violations within three years.

           EXISTING STATE LAW  specifies that the Department of Corporations  
          (DOC) has the authority to enforce licensees it finds to have  
          violated any provision of RESPA, as amended (12 U.S.C. Sec. 2601  
          et seq.), or its regulations.  (Financial Code Section, 17425)  

           AS PASSED BY THE ASSEMBLY  , this bill was substantially similar  
          to the version passed by the Senate.

           FISCAL EFFECT  :  None  

           COMMENTS  :  The author believes, "Since the last major bout of  
          foreclosures during the downturn of the 1990's, a practice has  
          developed in the foreclosure market that is having significant  
          consequences to many groups, including home buyers.  Banks and  
          the Federal Department Housing and Urban Development Department  
          (HUD) are increasingly requiring the use of specific service  
          providers when they are the seller of residential property,  
          regardless of who pays for the service.  This practice is  
          illegal under federal laws and regulations. Assembly Bill 957  
          seeks to strengthen state law to further curtail this practice."

          In addition, the sponsor, the Escrow Institute of California,  
          further states, "What we are witnessing in the REO marketplace  
          is anti-competitive monopoly where banks direct the flow of the  
          sale of foreclosure properties to pre-selected settlement  
          service providers regardless of service or cost, and if a  
          potential buyer does not agree to use these services providers  
          their purchase offer will not be submitted or if reviewed by the  
          lender will be denied."

          Although, the intention of the bill may already be prohibited  








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          under federal law, the author and sponsor believe California  
          needs to further enforce that the action of banks  
          pre-determining title and escrow companies for buyers is  
          prohibited especially with the sale of REO properties.  KCRA,  
          recently released a story in regards to banks forcing buyers to  
          use their escrow companies.  This behavior restricts what should  
          be a healthy competitive environment and backs buyers into a  
          corner by forcing them to accept higher fees.  

          HUD has openly stated in the past, "The effectiveness of RESPA  
          could be enhanced by assuring that creative business structures  
          do not defeat the purposes of Sections 8 and 9 of RESPA, and by  
          providing the Secretary and State regulators with the necessary  
          tools to enforce the statute."  AB 957 could help ensure further  
          enforcement.  In addition HUD has written several informal  
          opinions explaining that all direct and indirect methods of  
          requiring the buyer to use the seller's selected title agent are  
          illegal.  For example, a seller who gave the buyer a choice of  
          using one of three title agencies, and who charged a higher fee  
          if another agency was used, violates Section 9 of RESPA.  A  
          clause in a purchase agreement that has the effect of forcing  
          the buyer to obtain and pay for a lender's title policy from a  
          specific title company or title agency is illegal.  The seller  
          and the seller's real estate broker are liable to the buyer for  
          three times the cost of the title insurance policy each time  
          that a seller or the seller's real estate broker includes such a  
          clause in the purchase agreement.  
           

          Analysis Prepared by  :    Kathleen O'Malley / B. & F. / (916)  
          319-3081


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